Opinion
June 29, 1993
Appeal from the Supreme Court, New York County (Jerome Hornblass, J.).
Defendant and three other perpetrators were convicted for the brutal subway robbery of four Swiss tourists, during which defendant stabbed one of the victims in the face, permanently blinding him in one eye. Defendant was tried with a codefendant, who had provided a complete confession. The written and videotaped statements were sufficiently redacted at trial to remove any facially incriminating reference to defendant (People v. Marcus, 137 A.D.2d 723, lv denied 72 N.Y.2d 862), and the court properly instructed the jury that the confession was applicable only to the prosecution of the codefendant. Since defendant challenged neither the redactions nor the instructions in limine at trial, no such challenges have been preserved for our present review, and we decline to review in the interest of justice.
A defendant has no absolute right to call a complainant as a witness at a pretrial Wade hearing (People v. Chipp, 75 N.Y.2d 327, 336-338, cert denied 498 U.S. 833), and we find no substantive indication of undue suggestiveness (see, People v Peterkin, 75 N.Y.2d 985; People v. Taylor, 186 A.D.2d 367, lv denied 80 N.Y.2d 1030) in the identification procedures to have warranted granting the defendant such relief.
Several of defendant's remaining evidentiary claims are unpreserved, and all are without merit.
While the court's use of a "two inference" instruction has been criticized (see, e.g., People v. Stinson, 186 A.D.2d 23, 25), in the present case defendant's failure at trial to register an objection deprived the trial court of an opportunity to cure the error, thus failing to preserve the claim (People v. Autry, 75 N.Y.2d 836). When the court re-charged the jury during supplemental instructions, it did provide the approved instruction from the Criminal Jury Instructions. Defendant never objected to this procedure either, thus failing on another occasion to alert the court to error which, in any event, we find to have been cured by the supplemental instructions. The court also should have adhered to the statutory language (CPL 300.10) in providing the requested "no inference" instruction with reference to the defendant's failure to testify. However, the present claim is unpreserved for review, and we decline to review it in the interest of justice.
Concur — Sullivan, J.P., Carro, Wallach and Nardelli, JJ.